McKinnie v. Roadway Express Inc

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 McKinnie, et al. v. No. 02-3058 ELECTRONIC CITATION: 2003 FED App. 0294P (6th Cir.) Roadway Express, Inc. File Name: 03a0294p.06 Charles J. French III, BAKER & HOSTETLER, Cleveland, Ohio, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ ROVEAIL MCKINNIE, et al., X Plaintiffs-Appellants, - KENNEDY, Circuit Judge. Plaintiffs appeal the district - court’s grant of summary judgment in favor of Roadway - No. 02-3058 Express, Inc., entered after Plaintiffs failed to oppose the v. - motion. Finding Plaintiffs’ failure is not excused, we > AFFIRM the judgment of the district court. , ROADWAY EXPRESS , INC., - Defendant-Appellee. - I. N On April 13, 2001, Roveail McKinnie, Derryl Matthews, Appeal from the United States District Court Dwayne Lopp, Anthony Brunson, and Henry Baddley filed for the Northern District of Ohio at Akron. suit against Roadway Express claiming racial discrimination No. 01-00901—James Gwin, District Judge. in violation of Title VII of the Civil Rights Act of 1964 and intentional infliction of severe emotional distress. McKinnie Argued: July 31, 2003 additionally claimed that Roadway racially harassed him, retaliated against him for exercising his rights under Title VII, Decided and Filed: August 18, 2003 discriminated against him and failed to accommodate his disability in violation of the Americans with Disabilities Act. Before: KENNEDY, GILMAN, and GIBBONS, Circuit Judges. On May 7, 2001, the district court ordered that the case be entered into the court’s electronic filing system, and that all _________________ further documents, notices, and orders be filed electronically. The electronic filing system permits counsel to submit and COUNSEL access documents electronically, and informs counsel of filings by email. ARGUED: Joseph K. Grant, SAFFOLD, GRANT & MASON, Cleveland, Ohio, for Appellants. Jeremy R. Sayre, On September 7, 2001, Plaintiffs’ counsel filed a motion BAKER & HOSTETLER, Cleveland, Ohio, for Appellee. for leave for mandatory withdrawal, which the district court ON BRIEF: Joseph K. Grant, SAFFOLD, GRANT & granted on September 13, 2001. On that same day, the MASON, Cleveland, Ohio, for Appellants. Jeremy R. Sayre, district court ordered that dispositive motions be filed by October 17, 2001, with responses due on October 31 and

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reply briefs due on November 7. The trial was tentatively time. On December 11, 2001, the district court granted scheduled to start December 17, 2001. Roadway’s summary judgment motion in a seventeen-page opinion dealing with each Plaintiff’s claims. On October 16, 2001, the day before dispositive motions were due, the district court received a letter from McKinnie Roadway filed a motion for costs on December 21, 2001. advising the court that Plaintiffs had not been able to retain On January 11, 2002, present counsel filed an appearance. At replacement counsel and asking that Plaintiffs’ claims be the costs hearing before the magistrate judge, present counsel remanded to the Equal Employment Opportunity Commission opposed the motion on the grounds that Plaintiffs could not (EEOC) for mediation. The district court did not grant afford to pay costs because most of them were unemployed Plaintiffs’ request for a remand.1 On that same day, the and an award of costs would discourage Plaintiffs from filing district court extended the deadline for filing dispositive future civil rights litigation. Plaintiffs again made no motions to October 22, 2001, with responses due on argument about not having had adequate time to respond to November 5 and reply briefs due on November 13. Roadway’s motion for summary judgment. On January 31, 2002, the magistrate judge recommended that the district On October 22, 2001, Roadway filed a motion for summary court grant the motion for costs, which the district court did judgment, which drew support from deposition testimony on February 21, 2002. given by each of the Plaintiffs and affidavits of Roadway personnel. Roadway certified that its motion was filed With the assistance of counsel, Plaintiffs filed a notice of electronically, that notice of the filing was to be sent appeal on January 11, 2002, which was followed, on electronically to all parties by operation of the district court’s January 18, by a motion for extension of time to file a notice electronic filing system, and that all parties could access the of appeal. The district court granted the extension on January filing through the court’s system. 22, 2002, and this appeal followed. No appeal was filed from the award of costs. On November 26, 2001, McKinnie, proceeding pro se, filed a motion to stay the case. The district court denied the II. motion on November 30 and ordered Plaintiffs to respond to Roadway’s summary judgment motion by December 5 and Plaintiffs contend that the district court’s grant of summary encouraged the parties to mediate their dispute. Plaintiffs do judgment in favor of Roadway should be reversed because not deny their timely receipt of the court’s November 30 Roadway failed to serve its summary judgment motion in order, yet they failed to respond by December 5 either on the conformity with Federal Civil Procedure Rule 5(b). Plaintiffs merits of Roadway’s motion or by requesting an extension of also contend that the district court should have given them notice as to the requirements of Federal Civil Procedure Rule 56(e), as well as the consequences of failing to oppose 1 The district court had referred the case to mediation on June 13, Roadway’s summary judgment motion. This Court reviews 2001, apparently through the district court’s mediation program. On de novo the district court’s disposition of a motion for August 31, 2001, the ADR administrator reported that a mediation summary judgment. Mulhall v. Ashcroft, 287 F.3d 543, 550 conference was held on August 28, 2001 and the mediation process was (6th Cir. 2002). Summary judgment is appropriate where complete. The case was returned to chambers for further settlement there is no genuine issue as to any material fact and the negotiations and case processing.

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moving party is entitled to judgment as a matter of law. Fed. judgment because Plaintiffs had actual notice that the R. Civ. P. 56(c). Material facts are those facts defined by the summary judgment motion had been filed. In their appellate substantive law and that are necessary to apply it. Anderson brief, Plaintiffs admit that they learned that “Roadway had v. Liberty Lobby, 477 U.S. 242, 248 (1986). While a court filed for summary judgment sometime in December, after must draw all inferences in a light most favorable to the non- they had received the district court’s Order dated moving party, it may grant summary judgment if the record, November 30, 2001, informing the Appellants that they must taken as a whole, could not lead a rational trier of fact to find respond to Roadway’s motion.” In three unreported cases for that party. Matusushita Elec. Indus. Co. v. Zenith Radio where a non-moving party has attempted to excuse his or her Corp., 475 U.S. 574, 587 (1986). failure to oppose a summary judgment motion on the ground that the non-moving party did not receive a copy of the A. motion, the Sixth Circuit has affirmed a district court’s grant of summary judgment when the non-moving party has failed Plaintiffs contend that the district court’s grant of summary to demonstrate on appeal that the existence of a genuine issue judgment in favor of Roadway should be reversed because of material fact precluded summary judgment. See L’Bert v. Roadway failed to serve its summary judgment motion in West, 2001 WL 11450734 (6th Cir. Oct. 30, 2001) conformance with Federal Civil Procedure Rule 5(b). (unpublished) (affirming summary judgment in favor of Roadway argues that even if Plaintiffs were not served in defendant even though plaintiff claimed to have not received accordance with Rule 5(b), the district court’s decision must notice of motion because nothing in the record established the be affirmed because Plaintiffs have failed to present any existence of genuine issue of material fact); Shy v. Bhatt, evidence that Roadway is not entitled to summary judgment.2 1990 WL 115854 (6th Cir. Aug. 9, 1990) (unpublished) (affirming summary judgment in favor of defendant prison Plaintiffs’ counsel consented to participation in the district officials even though pro se prisoner claimed to have never court’s electronic filing system. Electronic service, however, received motion because plaintiff had not raised any argument was inadequate once Plaintiffs’ counsel withdrew. Thus, on appeal establishing the existence of a genuine issue of Roadway’s summary judgment motion was not served on material fact); Person v. Norris, 1990 WL 75250 (6th Cir. Plaintiffs in conformity with Rule 5(b). June 6, 1990) (unpublished) (affirming summary judgment against pro se prisoner even though prisoner claimed to have The violation of Rule 5(b), however, does not provide a not received notice of motion because prisoner had not sufficient basis to reverse the district court’s summary demonstrated that he could have produced any evidence that would have required the district court to change its decision on the merits). 2 Roadway argues that this Court should not reach the merits of this claim because the issue of inadequate service was never presented to the If reversal is not appropriate when the complaining party district court. Plaintiffs did not raise the issue in a Rule 59 motion to alter did not receive a properly served motion and ostensibly did or amend or in a Ru le 60(b) motion for relief from judgment, nor did they not have actual knowledge that the motion was pending, raise the issue in their oppo sition to Road way’s motion for co sts. reversal can hardly be appropriate when a party has actual Roadway, however, does not point to any precedent dismissing an appeal such as this on the ground that the claim was never presented to the knowledge of a pending motion despite legally inadequate district co urt. service. Consequently, we hold that when a party is not

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properly served but nonetheless has actual notice of a III. summary judgment motion prior to its disposition, the district court’s summary judgment decision should be affirmed unless Because Plaintiffs had actual notice of Roadway’s pending the party who failed to oppose the motion demonstrates on summary judgment motion and Plaintiffs have not appeal that the existence of a genuine issue of material fact demonstrated on appeal that a genuine issue of material fact precludes summary judgment as a matter of law. Because existed for trial, we affirm the district court’s grant of Plaintiffs had actual notice of Roadway’s pending summary summary judgment to Roadway. We further hold they did judgment motion and Plaintiffs have not demonstrated on not have to notify Plaintiffs of the requirements of Rule 56(e) appeal that a genuine issue of material fact existed for trial, or inform Plaintiffs of the consequences of failing to oppose we affirm the district court’s grant of summary judgment to Roadway’s summary judgment motion. Roadway for the reasons stated in its order filed December 11, 2001. B. Plaintiffs also contend that the district court should have given them notice as to the requirements of Federal Civil Procedure Rule 56(e), as well as the consequences of failing to oppose Roadway’s summary judgment motion. Ordinary civil litigants proceeding pro se, however, are not entitled to special treatment, including assistance in regards to responding to depositive motions. Brock v. Hendershott, 840 F.2d 339, 343 (6th Cir. 1988). “A panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985); see also 6th Cir. Rule 206(c) (stating that a published panel opinion is binding on all subsequent panels). Thus, the district court did not have to notify Plaintiffs of the requirements of Rule 56(e) or inform Plaintiffs of the consequences of failing to oppose Roadway’s summary judgment motion.